Mississippi prosecutors say ex-medical examiner can travel through time

In May, I wrote about Brandon v. Mississippi, a shaken-baby case involving testimony from controversial medical examiner Steven Hayne. You can read the previous post for the full background, but to summarize, Hayne has a long history of giving questionable testimony. There have also been questions about his massive workload, his professionalism and his credibility in general. So far, most of the people in Mississippi government haven’t done much about this, despite the fact that he has testified in thousands of cases. In particular, the office of Mississippi Attorney General Jim Hood has vocally and robustly defended Hayne and refused to review any of the cases in which he has testified.

In the Brandon case, I noted two particularly troubling aspects of Hayne’s testimony. First, Hayne cited a textbook on forensic pathology written by Vincent Di Maio and claimed on the stand that it supported his conclusion that the 15-month-old son of Christopher Brandon’s girlfriend had been shaken to death. But Hayne completely mischaracterized the textbook, as Di Maio himself told me in an interview. It’s a tactic that Hayne has used often over the years. He’ll cite a textbook or study that’s likely obscure to anyone not in the field of forensic pathology and claim that it backs up his testimony, relying on the probability that few attorneys are going to bother verifying the claim. Ideally, the defense will have its own forensic pathologist on hand to review Hayne’s testimony. But in Brandon’s case, the judge refused to grant funds for the defense to hire its own expert witnesses.

The second troubling thing about Hayne’s testimony is that he also cited a study, which he called “the Alperi study by Harvard University in the Mass General,” that he claimed disproved the defense contention that the child died after he was accidentally dropped, not intentionally shaken. The problem is that this study doesn’t seem to exist.

The state, represented by Hood’s office, has now filed its response to Brandon’s petition for a new trial. (Brandon is now represented by attorneys at the Mississippi Innocence Project.) The state’s reply again goes to great pains to defend Hayne’s integrity, mostly by noting that Hayne’s credibility has already been attacked in previous cases, and the Mississippi Supreme Court has usually disregarded those attacks. The state also rejects Brandon’s claim that he was denied a fair trial because he wasn’t given funding to hire his own expert by arguing that Brandon wasn’t actually indigent, and therefore wasn’t eligible for funding. (The very fact that Brandon was unable to hire an expert witness to defend him at his murder trial is a pretty good indication that he was, in fact, indigent.)

Curiously, the state’s reply completely ignores the allegation that Hayne mischaracterized the work of textbook author Di Maio. Perhaps it simply couldn’t refute the fact that Di Maio himself says that Hayne abused his text, and chose instead to pretend that it never happened.

The state does address Hayne’s mystery study, however. And it’s rather embarrassing for the state.

In his petition, Brandon correctly notes that an Alperi study by Harvard does not seem to exist. However, rather than acknowledge that Dr. Hayne could have merely misspoken or inadvertently attributed the wrong name to the study he had in mind or that there was an error in transcription, Brandon leaps to the conclusion that Dr. Hayne completely fabricated the study and that Dr. Hayne’s testimony must then be full of lies.

Undersigned counsel was unable to find an Alperi study. However, the Alpert Medical School, along with the National Center on Shaken Baby Syndrome, jointly sponsors a biennial international conference on shaken baby syndrome. The agenda for the 2012 conference shows that a study on short distance falls was in fact presented. See page 10 of the 2012 conference agenda. Short distance falls were also discussed at the Eleventh International Conference on Shaken Baby Syndrome co-sponsored by Alpert Medical School. It is more likely that Dr. Hayne was recalling these studies than it is that he entirely fabricated a study which dismisses the idea that a short distance fall could produce the massive, fatal injuries at issue in the present case. In any event, the State absolutely denies that it put on false testimony to secure Brandon’s conviction.

At first blush, this might seem like a persuasive explanation for what happened. But there are a few problems. First, the Alpert Medical School is at Brown, not Harvard. So to believe the state’s explanation, you’d have to believe that Hayne didn’t just misstate the name of the author of this study, he misremembered a panel discussion as a study, and misremembered the study’s author as the name of the medical school that sponsored the conference. This all gets even less plausible given that Hayne actually got his medical degree from Brown University. (It’s interesting that the state chose to speculate on what Hayne meant instead of asking him to submit an affidavit clarifying his testimony.)

Now it’s true that the 2012 conference was held in Boston. The state suggests that this is where Hayne’s reference to Harvard may have come from. Here’s the problem with that: Hayne’s testimony came during a trial that took place in 2009. By the laws of physics, it would have been impossible for him to have mistakenly “recalled” a presentation from a 2012 conference during his testimony at a trial that took place in 2009.

The state also mentions that “[s]hort distance falls were also discussed at the Eleventh International Conference on Shaken Baby Syndrome co-sponsored by Alpert Medical School,” and suggests that Hayne could also have been referring to a panel at that conference. But the Eleventh International Conference on Shaken Baby Syndrome took place in 2010. At least we’re getting closer! But there’s still no way Hayne could have been remembering the events at a 2010 conference while testifying in 2009.

By his own admission, Hayne performed some 1,200 to 1,800 autopsies per year in Mississippi, all while also holding down two full-time jobs, testifying in court, authoring studies and keeping up on his continuing education. That he was able to do all of this and, as he and his defenders insisted, do it all competently and credibly already suggests that he possessed a superhuman power to bend the space-time continuum to his will. Now the Mississippi Attorney General’s Office wants us to believe that the guy can actually travel through time.

Let’s get Joss Whedon working on this — a summer blockbuster about a crime-fighting, peripatetic medical examiner who can slip the bounds of time.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · July 28, 2014